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“Delay until They Die”

Professor Fleischer’s May 16 “A Dickensian Delay at the I.R.S.” at the NYT isn’t looking so good. He said,

Long delays are evidence of ineptitude and a reluctance to tackle difficult issues, not evidence of a political conspiracy. It may be the case that a couple of I.R.S. employees went rogue, as the acting I.R.S. commissioner, Steven T. Miller, suggested on Wednesday before he was ousted from the job.

Aggressive investigation of those individuals may be appropriate. But firing Mr. Miller, as President Obama did on Wednesday, is mere tokenism. The witch hunt obscures the institutional failures that Congress could actually correct.

By now we have heard the testimony of the Cincinnati people, who say Mr. Miller’s IRS was lying when it tried to blame them, and that the IRS Washington lawyer Cordell Hull was telling them to not process the Tea Party applications. Lois Lerner, a bigger wig in Washington, has taken the 5th Amendment out of fear of criminal prosecution. Cordell Hull has testified that the Office of Chief Counsel Wilkins, one of two political appointee bosses in the IRS, told him to tell Cincinnati not to process Tea Party applications. And the IRS is no longer really trying to defend itself: it’s stonewalling, and hoping the pressure will stop.

But let’s go back to an important sentence:

“Long delays are evidence of ineptitude and a reluctance to tackle difficult issues, not evidence of a political conspiracy.”

In many contexts, delay is exactly the strategic way to thwart an enemy. It isn’t evidence by itself, but it is when some people are delayed and some aren’t.

It wouldn’t have worked if Obama’s people at the IRS had simply rejected all the Tea Party applications. Quick wrongful refusal of 501(c)4 status would have led to judicial review and reversal. Delay not only avoids judicial review (partly through applicant naivete—apparently over 30 of the applicants were statutorily entitled to sue because of delay, the IG says), it also allows the agency to tie up applicant resources with burdensome questions. The burdensome questions, in turn, give excuse for more delay because it takes time to process so much useless information. “Delay until they die” is just as good as “Kill ’em now.”

I admit that I often forget that stupidity is often the reason behind apparently clever strategies. The idea of “behavioral rules of thumb” combines the explanations. But here, the evidence has started to point towards deliberate delay by the Chief Counsel’s Office, since ordinarily they would not intervene in a policy decision like this. They volunteered to take on this work.

Sarah Ingram, who was in charge of Tax Exempts 2009-2012, got more bonuses than anyone in the IRS but “Richard Byrd”. Whether ineptitude or strategy, her superiors liked what she did.


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